Internet millionaire Kim Dotcom's American lawyers have launched another bid to dismiss charges against his file storage company Megaupload.
His lawyers today filed documents in the United States Federal Court in Virginia, arguing Megaupload is being denied due process by not having been granted a court hearing, ten months after Dotcom was arrested at his mansion in Auckland.
"The ability of a criminal defendant to mount, not only in theory but also in practise, a fair defence should be beyond question," they said.
"Sadly, the Government's conduct of this case is to the contrary, raising grave questions about whether the Government is out to play judge, jury, executioner, and asset collector without benefit of the adversarial process and protections ... to which this corporation is entitled."
Last month, US District Court Judge Liam O'Grady ruled the US Government had the authority to bring copyright charges against Megaupload, and could serve the company if Dotcom or one of this executives were extradited to the States from New Zealand.
In their bid to have the charges dismissed, Dotcom's lawyers today argued that the US court itself had acknowledged Dotcom and his executives may never be extradited and the US Government may therefore never be able to deliver its indictment.
"Megaupload thus faces an undefined and potentially indefinite period of abeyance, during which its assets will remain restrained and its reputation tarnished."
The lawyers argued that federal rules of criminal procedure state that a "court may dismiss an indictment, information, or complaint if unnecessary delay occurs in ... bringing a defendant to trial."
"There should be no doubt, therefore, that this court may dismiss the case against the corporate defendant, whether with or without prejudice."
The lawyers argued the company had suffered 10 months of having its website seized, its business destroyed, and all of its assets frozen.
Megaupload is in a state of limbo and has been deprived to rehabilitate its business, they said.
The lawyers labelled the US Government's other arguments against dismissal as "spurious''.
They said it was blaming the company for delays in proceedings, because they were challenging nearly every aspect of the New Zealand-based warrants.
It was not the defendants' fault that New Zealand's Government Communications Security Bureau had acted illegally by spying on Dotcom when he was protected as a New Zealand resident, the lawyers said.
"For the Government, in these circumstances, to fault Megaupload and its Co-Defendants for supposed 'delay' associated with invoking their legal rights is to turn due process on its head,'' they said.
- © Fairfax NZ News
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